State v. Grant

• Citation: 53 N.W. 120,86 Iowa 216
• Parties: THE STATE OF IOWA, Appellee, v. COLE GRANT et al., Appellants
• Decision Date: 10 October 1892
• Court: Iowa Supreme Court

53 N.W. 120

86 Iowa 216

THE STATE OF IOWA, Appellee, v. COLE GRANT et al., Appellants

Supreme Court of Iowa, Des Moines

October 10, 1892

Appeal from Hamilton District Court.--HON. D. R. HINDMAN, Judge.

THE defendants were indicted, convicted and sentenced for a conspiracy, and appeal.

Reversed.

D. C Chase, for appellants.

John Y Stone, Attorney General, and Thos. A. Cheshire, for the State.

OPINION

KINNE, J.

It appears that in April, 1888, the defendant Cole Grant came to Webster county, Iowa, and on the thirteenth of the same month made a contract under the name of Cole Grant & Co. with Breece & Breece of Ft. Dodge to manufacture a combination slat and wire fence, which he had the right to manufacture and sell in that county. He procured from said firm a certificate that they had entered into such a contract with Cole Grant & Co. He then employed a number of men, among them the defendant, McNeal, to establish agencies among the farmers, authorizing said agents, by written and printed contracts, to build or sell the manufactured fence aforesaid which they were to procure from Breece & Breece, and which was to be furnished them at certain prices per rod, depending upon the height of the fence desired and the number of wires used therein. On all fences sold by Breece & Breece at the factory, there was to be credited to the township agent, wherein the fence was to be used, the sum received in excess of the prices provided for in the agent's contract. The fence was to be sold so that the agent's net profit should be fifteen cents per rod, or forty-eight dollars per mile. The agent, on his part, agreed to use his best endeavors to sell fence in his territory, keep an account of the same, and remit to Cole Grant & Co. five cents per rod of his commission, after he had received all of his commission, amounting to three hundred and sixty dollars on the first seven and one-half miles that he sold, having paid Grant & Co. one hundred dollars commission on two miles of fence at the time he entered into the contract. Said two miles of fence were to be sold within one year from date of the contract; if not, Grant & Co. were authorized to cancel the contracts, and appoint another agent, returning to the first agent his original obligation of one hundred dollars, but no commissions paid thereon. These forms of contract were, it appears, furnished to all employees, together with blank notes to be signed by those who might be thus appointed agents. The commission which the contract provided to be paid down was in the form of a note taken by the employer. The contracts, while varying in some minor details, were all substantially as above described.

I. It is insisted that the indictment in this case is insufficient in that it does not charge that the defendants conspired "to obtain" the notes, and also that the mutual "intent" of the defendants is not averred. The indictment charges that "the said Cole Grant and A. W. McNeal, on the tenth day of May, 1888, and at various other days to this grand jury unknown, in the county aforesaid, did unlawfully, willfully and feloniously conspire and confederate together for the unlawful, malicious and felonious purpose, and with fraudulent and malicious intent and purpose, wrongfully, feloniously and unlawfully to obtain from" (certain parties therein named and others) their names and signatures to "certain written and printed promissory notes and evidences of debt, the fraudulent making of which would be forgery, by false statements and representations and promises." It further charges that the defendants did obtain certain notes, by "so conspiring and confederating together," of the value of one thousand dollars, from persons named in the indictment and from others, and that the signatures of such persons to said notes, the false making of which would be forgery, were obtained by "false and fraudulent representations, statements and promises," etc., and all of which said false representations, statements and promises were made in pursuance "of said conspiracy and combination between the defendants."

Code, section 4087, provides: "If any two or more persons conspire or confederate together with the fraudulent or malicious intent wrongfully to injure the person, character, business, or property of another, or to do any illegal act injurious to the public trade, * * * or to commit any felony, they are guilty of a conspiracy," etc. Code, section 4073, provides: "If any person designedly and by false pretense, or by any privy or false token, and with intent to defraud, obtain from another any money, goods, or other property, or so obtain the signature of any person to any written instrument, the false making of which would be punished as forgery, he shall be punished by imprisonment in the penitentiary not more than seven years, or by fine not exceeding five hundred dollars and imprisoned in the county jail not exceeding one year." And section 4104 of the Code defines a felony thus: "A felony is a public offense which is, or, in the discretion of the court, may be, punished by imprisonment in the penitentiary."

The indictment fully and clearly charges the defendants with the crime of conspiracy to commit a felony. The claim made by the appellants that the indictment should in terms charge that the defendants conspired "to obtain," etc., instead of with "the intent to obtain," etc., hardly merits serious consideration, in view of the language of the statute under which it was drawn. It reads: "If any two or more persons conspire or confederate together with the fraudulent or malicious intent to" do certain acts, they shall be guilty of a conspiracy. In the particular complained of, the indictment follows the provisions of the statute as closely as possible. This has always been held sufficient. Furthermore, there can be no question that the charge as made is of a mutual intent to do the acts complained of. They are charged with having conspired together to commit the crime named, and with in fact having committed it. The indictment in this respect complies with Code, sections 4085, 4086.

II. It is said that the indictment is defective, in that it fails to fully disclose the means by which the crime was to be accomplished. It is well settled in this state, and is the law in many states, that, where the indictment charges a conspiracy to do an act which is a crime, it is sufficient if it be described by the proper name or terms by which it is generally known in law. It is only where the charge is that an act in itself not criminal is sought to be accomplished in an illegal manner, or by illegal means, that the means used for its accomplishment must be averred. State v. Potter, 28 Iowa 554; State v. Savoye, 48 Iowa 562; State v. Ormiston, 66 Iowa 143, 23 N.W. 370; 4 Amer. and Eng. Encyclopaedia of Law, pp. 624-626.

III. It is contended that the indictment fails to charge a statutory offense, because the words "designedly, and by false pretenses," which are used in our statute defining the crime of obtaining property by false pretenses, are not used therein. The language of the indictment is that the crime was accomplished "by the making of false statements and representations and promises." These terms are in legal effect synonymous with those used in the statute. A "pretense" is defined as "a representation; simulation; device." Anderson's Law Dictionary. "False pretenses" are said to be "false representations and statements made with fraudulent design," etc. Black's Law Dictionary. And again, as "a representation of some fact or circumstance calculated to mislead, which is not true." Anderson's Law Dictionary. Also, "any person who by false and fraudulent representations or statements of an existing or past fact, made with knowledge of its falsity, and with the intent to deceive and defraud, induces another to part with money or property of value, is guilty of a false pretense." 7 Amer. and Eng. Encyclopaedia of Law, 700. "A representation of some fact or circumstance calculated to mislead, which is not true." Com. v. Drew, 36 Mass. 179, 19 Pick. 179. This court has held a "pretense" to be "the holding out or offering to others something false and feigned. This may be done either by words or actions, which amount to false representations. In fact, false representations are inseparable from the idea of a pretense." State v. Joaquin, 43 Iowa 131. And we have said that in some cases "the false statement and the false promise may be considered together in constituting the false pretense." State v. Montgomery, 56 Iowa 195, 9 N.W. 120. We have held, too, an indictment good, though the word "pretense" was not used therein. State v. Neimeier, 66 Iowa 634, 24 N.W. 247.

Nor is it material that the word "designedly" is not found in this indictment. It is charged therein that the defendants conspired "for the unlawful, malicious, and felonious purpose, and with fraudulent and malicious intent and purpose, * * * to obtain," etc. The meaning of the words "intent and purpose" used in the indictment is the same as "design." "Design" is defined as "purpose or intention, combined with plan, or implying a plan in the mind." Black's Law Dictionary. Again, as "aim; intent; purpose; object; end in view." Anderson's Law Dictionary. Also, as "purpose; intention; aim," etc. 3 Amer. and Eng. Encyclopedia of Law, 643; Webster's Dictionary.

IV. It is said that the indictment is bad for duplicity; that it charges several offenses. This claim is not well founded. It is clear that only one offense is intended to be charged, and the trial was had upon that theory. True, it is not necessary to charge the commission of the overt act which was the ultimate object of the conspiracy. Commonwealth v Judd, 2 Mass....